Bond Bros. v. Kay, 8 Div. 315.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J. THOMAS, J.
• Citation: 136 So. 817,223 Ala. 431
• Parties: BOND BROS. v. KAY ET AL.
• Docket Number: 8 Div. 315.
• Decision Date: 18 June 1931

136 So. 817

223 Ala. 431

BOND BROS.
v.
KAY ET AL.

8 Div. 315.

Supreme Court of Alabama

June 18, 1931

Rehearing Denied Oct. 15, 1931.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on account and contract by B. F. Kay and J. A. Kay, partners doing business as B. F. Kay & Son, against Bond Brothers. From a judgment for plaintiffs, defendants appeal. Transferred from Court of Appeals.

Affirmed. [136 So. 818]

Julian Harris, of Decatur, for appellants.

Tennis Tidwell, of Decatur, for appellees.

THOMAS, J.

The claimant as originally filed was in two counts, each claiming the amount sued for, due by account for goods, wares, and merchandise sold and delivered to W. B. Goodson by plaintiffs at the special instance and request of defendant. The pleas thereto were the general issue and the statute of frauds, viz., that the promise was not in writing to answer for debt, default, or miscarriage of another.

At the trial the complaint was amended by adding six additional counts. Some of these counts were eliminated by demurrer and some charged out by the court; and counts 4, 5, and 8 were left.

Demurrer to count 4 was overruled, and the defendant pleaded the general issue and no consideration for the promise to pay the plaintiffs the Goodson debt. And count 5 averred that Goodson contracted the debt with plaintiffs and the defendant promised to pay if they would release Goodson, and that plaintiffs did release Goodson, but defendant failed to pay the account contracted by Goodson. Issue was joined on this count and judgment was for plaintiffs.

The controverted questions of fact under the pleadings were: Whether the credit for goods and merchandise was to plaintiffs or to their subcontractor, Goodson. On this issue there was conflict in the testimony and the record evidence, and a jury question was presented (McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135), and whether there was a binding new agreement to pay the plaintiffs by defendant and a new debt created on which the former acted and released Goodson. La Duke v. Barbee & Co., 198 Ala. 234, 73 So. 472.

There was no reversible error in allowing plaintiffs' witness Goodson to say, without objection, that Johnson, the agent for defendant, knew about the Kay account at the time of its alleged assumption (Louisville & Nashville R. R. Co. v. Perkins, 165 Ala. 471, 51 So. 870, 21 Ann. Cas. 1073; Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 so. 686; Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71; Reliance Life Ins. Co. v. Russell, 208 Ala. 559, 94 So. 748; Southern Rwy. Co. v. Haynes, 186 Ala. 60, 65 So. 339), and knew the substantial amount thereof. The objection did not come until the question, and answer that was responsive to the question to which no objection was interposed. Speculation on such answer may not be indulged and thereafter exception reserved. Washington v. State, 106 Ala. 58, 17 So. 546; McCalman v. State, 96 Ala. 98, 11 So. 408; Billingsley v. State, 96 Ala. 126, 11 So. 409; Liner v. State, 124 Ala. 1, 27 So. 438.

Moreover, Johnson, the agent of defendant, testified that about February, 1927, Kay told him Goodson owed the plaintiffs substantially the amount sued for and interest; and later that Johnson said this during the course of conversation Goodson had with Johnson in 1927 about the account; [136 So. 819.] hence there was no injury to the defendant in the answer, if...